Creech v. Creech

123 S.E.2d 793 (1962)

256 N.C. 356

Nancy Johnson CREECH v. James Osborne CREECH.

No. 315.

Supreme Court of North Carolina.

February 2, 1962.

*794 Jones, Reed & Griffin, Kinston, for defendant, appellant.

J. Harvey Turner, Kinston, for plaintiff, appellee.

MOORE, Justice.

The court erred in failing to make findings with respect to the issue of plaintiff's alleged adultery.

G.S. § 50-16 provides that in a suit by a wife for alimony without divorce "it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees." An allegation in an answer is deemed controverted without necessity of reply if it does not relate to a counterclaim. G.S. § 1-159; Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876. Plaintiff did not reply and expressly deny defendant's allegations of adultery, but these allegations do not relate to a counterclaim. Hence, they are taken as controverted.

On motion for alimony pendente lite made in an action by the wife against the husband pursuant to G.S. § 50-16, the judge is not required to find the facts as a basis for an award of alimony except when the adultery of the wife is pleaded in bar. Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436. In the instant case defendant expressly pleaded the adultery of plaintiff in bar of her claim to alimony and offered evidence in support of his plea. The order of the court awarding alimony pendente lite to plaintiff without finding the facts with respect to this plea ignores the provisions of G.S. § 50-16 quoted above. Williams v. Williams, 230 N.C. 660, 55 S.E.2d 195. Defendant is entitled to a rehearing upon plaintiff's motion for alimony pendente lite.

Pending this appeal both parties moved for a modification of the order of 17 February 1961, and plaintiff requested that a citation be served on defendant for failure to make the payments in accordance with the order. These motions were continued pending the outcome of the appeal. Our decision herein renders them moot. Furthermore, an order appealed from may not be modified while the appeal is pending for the Superior Court is without authority to enter the subsequent order. Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554.

*795 The cause is remanded for rehearing of plaintiff's motion for alimony pendente lite and for findings of fact in accordance with the statute and decisions of this Court.

Error and remanded.